Bencivengo Chambers Rules for Civil Cases; Bencivengo Chambers Rules for Criminal Cases

=== Bencivengo Chambers Rules for Civil Cases ===

HONORABLE CATHY ANN BENCIVENGO U.S. DISTRICT JUDGE CIVIL CASE PROCEDURES Chambers United States District Court Southern District of California 333 West Broadway, Suite 1510 San Diego, CA 92101 Tel: (619) 557 – 7688 Courtroom: 15A Courtroom Deputy Lori Hernandez (619) 557-901 Court Reporter Chari Bowery [email protected] Unless otherwise ordered, matters before Judge Bencivengo will be conducted in accordance with the rules stated below. Unless specifically stated, counsel and pro se litigants are expected to follow the Federal Rules of Civil Procedure, the Civil Local Rules for the Southern District of California, the Electronic Case Filing Administrative Policies and Procedures Manual (the “ECF Manual”), and other applicable rules. The Civil Local Rules and the ECF Manual are available on this District’s website at: https://www.casd.uscourts.gov/rules/local-rules.aspx. I. COMMUNICATIONS WITH CHAMBERS A. Telephone Calls: Parties seeking a motion date for a noticed motion should refer to Section II. Telephone calls to Chambers are rarely appropriate. Such calls may only be made by counsel or pro se litigants with knowledge of the case. Calls from secretaries, legal assistants, paralegals, or parties represented by counsel are prohibited. Counsel and pro se litigants should not call Chambers with procedural questions or to inquire whether any action has been taken with regard to a previously submitted filing. The Court does not provide time estimates for its written rulings. Court personnel are prohibited from giving legal advice or discussing the merits of a case. When calling chambers, be prepared to identify your case by case name and case number so your call can be directed to the appropriate law clerk. If your call is not answered, you may leave a voicemail, including your name, contact information, case number, and a detailed message. Upon reviewing your voicemail, the Court may return the call if necessary. B. Letters, Faxes, or Emails: Letters, faxes or emails to Chambers are prohibited unless specifically requested by the Court. If letters, faxes or emails are requested, copies of the same must be simultaneously delivered to all counsel and, absent prior approval by Chambers, must not exceed three pages in length, using twelve-point font. Correspondence with the Court must state the manner in which it was served on all other counsel (e.g., “By Hand,” “By Express Mail”). Copies of correspondence between counsel must not be sent to the Court unless specifically requested by the Court. C. Courtesy Copies: Parties do not need to provide courtesy copies unless specifically requested by the Court. 1 II. NOTICED MOTIONS A. Motion Dates: Parties filing a noticed motion must set the hearing date to be thirty five (35) days from the motion’s filing date.1 Parties should not contact chambers for a motion hearing date.2 Opposition and reply briefs are due based on the noticed date. The hearing date on a motion does not indicate a date when appearances are necessary; rather, it sets the briefing schedule for the motion pursuant to the applicable local rules. Consequently, the filing party will not specify a hearing time on its motion, and will include the following language in the caption of the motion: PER CHAMBERS RULES, NO ORAL ARGUMENT UNLESS SEPARATELY ORDERED BY THE COURT. A party may request oral argument by filing a separate request that explains why oral argument would be helpful to the Court. If the Court grants a request for oral argument or sua sponte decides to hear oral argument, the Court will issue an order setting forth the date and time for oral argument. B. Proposed Orders: Proposed orders will only be submitted on non-dispositive, procedural motions in accordance with Section 2(h) of the ECF Manual. Counsel should email proposed orders in Word format directly to [email protected]. C. Summary Judgment Motions: Notwithstanding Civil Local Rule 7.1.f.1., Separate Statements of Fact will NOT be filed. D. Exhibits/Unreported Cases: All exhibits submitted in support of motions should be excerpted to include only relevant material. All exhibits must be clearly labeled, dated, tabbed, and indexed. Copies of documents already contained on the electronic docket will not be included as exhibits. Such documents should be cited in the text of the motion as [Doc. No. ___ at ___] referencing the docket number of the document cited and using the ECF generated page number for pinpoint cites. For cases not assigned to a reporter for publication, WESTLAW citations should be given, if available. Citations to cases not available in WESTLAW or LEXIS should be accompanied by copies of the cases cited. E. List of Terms/Names: For technical motions (especially in patent cases), one week prior to the motion hearing, the parties will send an email to chambers (but do not file) with a list of pertinent technical terms and/or proper names, the purpose of which is to assist the court reporter in the transcription of the hearing. F. Unopposed Motions: An opposing party’s failure to timely file an opposition to any motion may be construed as consent to the granting of the motion pursuant to Local Rule 7.1.f.3.c. 1 For example, if the motion is filed on September 1, 2016, the motion date should be October 6, 2016. 2 This rule supersedes the requirement of Local Rule 7.1.b that a motion date must be obtained from chambers. 2 III. TELEPHONIC APPEARANCES Telephonic appearances are allowed only if specifically approved or requested by the Court. All requests by parties to appear telephonically will be made by filing a document entitled “Ex Parte Application for Telephonic Appearance,” setting forth good cause for the request to appear telephonically. The ex parte application will be filed at least one week prior to the hearing.3 If the application is granted, the Court’s order will include the teleconference dial-in information. IV. EX PARTE MOTIONS Before filing any ex parte motion, counsel will contact the opposing party to meet and confer regarding the subject of the ex parte motion. All ex parte motions will be accompanied by a declaration from the movant documenting (1) efforts to contact opposing counsel, (2) counsel’s good faith efforts, in person or by telephone, to meet and confer to resolve differences with opposing counsel, and (3) opposing counsel’s general position regarding the ex parte motion. Any ex parte motion filed with the Court will be served on opposing counsel via fax, electronic mail with return receipt requested, or overnight mail. Ex parte motions that are not opposed within two Court days will be considered unopposed and may be granted on that ground. V. PROTECTIVE ORDERS AND REQUESTS TO FILE UNDER SEAL Although the Court acknowledges the parties’ desire to maintain the confidentiality of documents produced in discovery, “[w]hen discovery material is filed with the court [] its status changes.” Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1134 (9th Cir. 2003). The public policy reasons behind a presumption of access to judicial documents apply. Id. The common law and the Constitution afford the public a qualified right of access to judicial records and proceedings. Times Mirror Co. v. U.S., 873. F.2d 1210, 1211 n.1 (9th Cir. 1989); Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 678 (9th Cir. 2010). In the Ninth Circuit there is a strong presumption in favor of access to court records and a party must show compelling reasons to file materials under seal as part of a non-discovery motion, even if they were produced subject to a discovery protective order. See Foltz, 331 F.3d at 1135-36. Once the protected discovery documents are made part of a dispositive [or non-discovery] motion, “they lose their status of being raw fruits of discovery” and no longer enjoy protected status without some overriding interests in favor of keeping the material confidential. See id., at 1136. Court records should be sealed to keep confidential only what must be kept secret, temporarily or permanently, as the situation requires. The party seeking to file under seal must provide articulable facts showing a compelling reason to limit public access to court filings. That a litigant might be embarrassed or exposed to additional liability or litigation, without more, is not sufficient. See Foltz, 331 F.3d at 1136. A court’s decision to seal material must be based on a compelling reason 3 If the Court sets a hearing with less than a week’s notice, the parties shall file their ex parte application for telephonic appearance as soon as possible. 3 and the order allowing a filing under seal must articulate the factual basis for its ruling without relying on hypothesis or conjecture. See Pintos, 605 F.3d at 679. “A ‘good cause’ showing will not suffice to fulfill the ‘compelling reasons’ standard that a party must meet to rebut the presumption of access to dispositive pleadings and attachments.” Id. (citing Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1180 (9th Cir. 2006 . Because the party that designated material as confidential should have the burden (and expense) of moving to file such documents under seal, the following procedures will apply when a party intends to file a non-discovery motion before Judge Bencivengo that cites to or attaches documents designated confidential. A. If the party filing the non-discovery motion (or opposition thereto) intends to cite or attach documents or information that it believes should be filed under seal, the moving party must file a motion to file documents under seal at least seven calendar days prior to the date on which it intends to file the non-discovery motion. The proposed sealed documents should NOT be lodged on CM-ECF with the motion to file documents under seal. Rather, a courtesy copy of the (filed) motion to file documents under seal, along with a courtesy copy of the unredacted (unfiled) materials that the party wants to file under seal, will be delivered to Judge Bencivengo’s Chambers within 24 hours of filing. After receiving a ruling from the Court on the motion to file documents under seal, the party may file its substantive motion (or opposition) consistent with the Court’s order and may then lodge any documents authorized to be sealed on CM-ECF by linking the sealed lodged documents to the original motion to file documents under seal. B. If the party filing the motion (or opposition thereto) intends to cite or attach documents or information that another party has designated as confidential pursuant to a protective order entered in the case, it will serve notice to the designating party by email, no later than eight business days prior to the date it intends to file the non-discovery motion or opposition, specifically identifying the documents and information it is contemplating using in connection with the motion or opposition. The designating party will then have four business days from the date of the notice to file a motion to file documents under seal. The proposed sealed documents should NOT be lodged on CM-ECF with the motion to file under seal. Rather, a courtesy copy of the (filed) motion to file documents under seal, along with a courtesy copy of the unredacted (unfiled) materials that the party wants to file under seal, will be delivered to Judge Bencivengo’s Chambers within 24 hours of filing. After receiving a ruling from the Court on the motion to file documents under seal, the party may file its substantive motion (or opposition) consistent with the Court’s order and may then lodge any documents authorized to be sealed on CM-ECF by linking the sealed documents to the original motion to file documents under seal. If the designating party does not timely file a motion to file documents under seal, the confidential designation will be deemed waived, and the party seeking to use the documents or information will file it publicly in connection with its motion or opposition. 4 VI. TRIAL PRACTICE AND PROCEDURES A. Electronic Equipment for the Courtroom: The Court now has new audio/visual equipment for counsels’ use. The courtroom has individual monitors at counsels’ tables, the lectern, the witness box, and the jury box as well as a large 55” gallery monitor for public viewing. A document camera and a DVD/Blue Ray player are now available for use and can be connected to counsels’ computers, laptops and tablets. HDMI and VGA video inputs are available at the lectern, witness box and counsels’ tables. Counsel are required to bring their own computers, laptops, tablets, HDMI or VGA adapters and wireless cards, if necessary. Counsel should contact the CRD for details and instructions and with questions regarding the use of equipment not provided for by the Court. B. Pretrial and Trial: Unless otherwise ordered by the Court, issues concerning trial such as motions in limine, jury instructions, and proposed voir dire will be discussed with the Court at the Pretrial Conference. C. Trial Schedule: Trial generally proceeds from 9:00a.m. to 4:30p.m., Monday through Thursday, unless the Court schedules otherwise. Jury deliberations generally proceed from 9:00a.m. to 4:30p.m., Monday through Friday, unless the Court schedules otherwise. UPDATED 9/9/24 5

=== Bencivengo Chambers Rules for Criminal Cases ===

HONORABLE CATHY ANN BENCIVENGO U.S. DISTRICT JUDGE CRIMINAL CHAMBERS’ RULES Courtroom 2 Courtroom Deputy Lori Hernandez (619) 557-6901 All matters before Judge Bencivengo shall be conducted in accordance with the following practices. Except as otherwise provided herein, or as specifically ordered by the Court, all parties are expected to comply strictly with the Local Rules of the Southern District of California and the Federal Rules of Criminal Procedure. COMMUNICATIONS WITH CHAMBERS A. B. C. D. Letters: Letters to chambers are prohibited, unless specifically requested by the Court. If letters are requested, copies of the same shall be simultaneously delivered to all counsel. Copies of correspondence between counsel shall not be sent to the Court. Faxes: Faxes to chambers are prohibited, unless specifically requested by the Court. If faxes are requested, copies of the same shall be simultaneously faxed or delivered to all counsel. Copies of correspondence between counsel shall not be sent to the Court. Telephone Calls: Please direct questions regarding criminal matters to our Courtroom Deputy, Lori Hernandez, at (619) 557-6901. Requests for Continuances: All requests for continuances should be made as soon as counsel become aware of the need for a continuance by contacting the Courtroom Deputy. Initial requests for continuances can be made telephonically to the Courtroom Deputy. For any subsequent requests, if counsel both agree to the requested continuance, a joint motion should be filed and a proposed order should be emailed no later than 48 hours before the scheduled appearance. The joint motion and order should include the original date, the requested date for continuance, and the grounds for continuance. MOTIONS A. Scheduling a Hearing Date: The magistrate judge will set a date for pretrial motions. Any changes to that date or any other hearing date for motions shall be obtained from the Courtroom Deputy. Criminal Local Rule 47.1(a). Motions generally are heard on the Court’s Friday calendar at 11:00 a.m. B. Filing of Motion Papers and Courtesy Copies: The original of all motions, including exhibits, on behalf of any defendant or any moving party, except the United States, shall be accompanied with two conformed copies and filed with the clerk at least 14 days before the date for which the motion is noticed unless the Court, for good cause and by order only, shortens such time. Criminal Local Rule 47.1(b). C. Notice to Court of Disposition: Any time a case is calendared for motions and counsel for either side knows that a disposition is to take place, counsel has a duty to call the Courtroom Deputy at the earliest available time to inform the Court of the disposition. DISPOSITIONS AND SENTENCINGS A. B. C. Dispositions: Rule 11 guilty pleas may be taken by the magistrate judges on a report and recommendation. Because the magistrate judge may have a more flexible schedule, the Court encourages pleas before the magistrate judge assigned to the case. Rule 11 proceedings before the district judge may occur at the pretrial motion date or as scheduled by obtaining a date from the Courtroom Deputy. Immediate Sentencing: Upon request, the Court will proceed with immediate sentencing in certain immigration cases if it has sufficient information in the record to perform a meaningful exercise of sentencing authority. Such dispositions are encouraged. Sentencing Summary Charts: All counsel shall adhere strictly to Criminal Local Rule 32.1(a)(9), which provides that completed sentencing summary charts must be filed no later than seven (7) days prior to a scheduled sentencing hearing. TRIAL PROCEDURES A. B. Motions in Limine: At the pretrial motions date, the Court generally will schedule a hearing date for motions in limine at 11:00 a.m. on the Friday before the Monday trial call. Motions in limine are due two weeks before the hearing, with any opposition due one week before the hearing. Jury Instructions: The parties should each submit proposed jury instructions to the Court five (5) court days before trial, unless otherwise ordered by the Court. Supplemental instructions must be filed and served as soon as the need for them becomes apparent. If counsel requests the model Ninth Circuit jury instructions, counsel may list the number of the instruction and edition without citing the text. The Court prefers to use the Ninth Circuit Criminal Jury Instructions whenever possible. The Court will accept other proposed jury instructions but counsel must cite the authority supporting the proposed instructions. Any proposed modification of an instruction from statutory authority or the Ninth Circuit Models must state specifically the modification and the authority supporting the modification. Before the case is submitted to the jury, the Court will provide each party with the C. D. E. jury instructions the Court intends to use. It is each party’s responsibility to carefully review the instructions and make suggestions to the Court if modifications appear necessary. Trial Briefs: Pursuant to Criminal Local Rule 23.1, the parties may, no later than five court days before the date of trial, serve and file briefs on all significant disputed issues of law, including foreseeable procedural and evidentiary issues. Proposed Voir Dire Questions and Verdict Forms: Counsel may serve and file proposed voir dire questions and forms of verdict on the day set for motions in limine. Jury Selection: The Courtroom Deputy will provide counsel with a numerical list of the jury panel at the start of voir dire, along with a seating chart. Jurors assigned seat numbers one through thirty-two will be questioned. The number of jurors questioned (thirty-two) is calculated as follows: the number of jurors to be selected (twelve), the number of alternates to be selected (generally two), and the number of peremptory challenges (generally eighteen). Thus, in a single defendant case in which the defendant has ten and Government six peremptory challenges, plus one challenge each with respect to alternates, voir dire will result in thirty-two panelists. The Court will conduct the initial jury voir dire. On a case by case basis, the Court may permit follow-up voir dire conducted by the attorneys. If voir dire by counsel is permitted, ten minutes per side on non-complex cases generally will be allowed. After the Court and counsel have voir dired the panel, counsel may exercise challenges for cause outside the presence of the prospective jurors. If any challenges for cause are sustained, the removed panelists usually will be replaced by inserting new panelists from the venire so that a full panel exists before any peremptory challenges are exercised. The new panelists will be voir dired in accordance with the above. The exercise of peremptory challenges will follow. Counsel will exercise alternating challenges—outside the presence of the prospective jurors—by calling out the jurors’ numbers they wish to excuse. The process will be repeated until all peremptory challenges are exhausted. In a single defendant case, the Government may exercise one challenge, followed by the defendant’s exercise of two challenges for four rounds, then each side may exercise one challenge for two rounds, making a total of six and ten. These challenges may be exercised only as to panelists one through twenty-eight, that is, not as to the panelists from whom the alternates will be chosen. Note that a party may waive its right to challenge but may not reserve. Thus, if counsel passes one time, he or she may not exercise any more peremptory challenges. Also note that challenges may be made to any of the panelists regardless of where that panelist appears in the array (except as to the prospective alternate jurors, that is, jurors twenty-nine through thirty-two). When each side has exhausted its peremptory challenges, the first twelve unchallenged persons shall constitute the jury. After the twelve-person jury is selected, each side has one additional peremptory challenge which is exercisable only with respect to panelists twenty-nine through thirty-two, that is, the prospective alternates. Generally, two alternates are selected from the remaining unchallenged panelists. These final two challenges will occur after the peremptory challenges as to the initial twelve jurors have been exercised. F. Presentation of Evidence: Please abide by the following rules: • Do not enter the well, except during voir dire, opening statement and closing argument. • Conduct all examination of witnesses from the podium. • Feel free to approach witnesses during examination, but first seek permission from the Court. Please keep your visit to the witness stand brief, e.g., by quickly orienting a witness with an exhibit and returning to the podium. • Where a party has more than one lawyer, only one lawyer may conduct the examination of a given witness and that lawyer alone may make objections concerning that witness. • When objecting, state only the legal ground for the objection; e.g., “Objection, hearsay.” Speaking objections are not permitted, unless the Court requests further information from counsel. • Refrain from talking to each other in the presence of the jury. If clarification on a matter is needed, please seek clarification from the Court and not directly from counsel. G. Bench Conferences: Sidebar conferences are disfavored. If counsel desire to speak to the Court outside the jury’s presence, counsel may request to do so at the start of the recess or at the end of the day. Requests to see the Court outside the presence of the jury when the Court is about to begin the day of trial or reconvene following a recess generally will not be granted. These matters usually can wait for the next recess. H. Witness and Exhibit Lists: The parties shall file witness and exhibit lists five (5) court days prior to the date of the trial, unless otherwise ordered by the Court. All exhibits must be pre-marked on the first day of trial. Exhibit stickers may be obtained from the Clerk of the Court or from the Courtroom Deputy, in advance of the trial. Before publishing an exhibit to the jury, counsel either must move for admission of the exhibit or allow the Court to inquire whether the opposing side has any objection to publication. When referring to an exhibit, counsel should refer to its exhibit number whenever possible in order to keep a complete record. If a demonstrative exhibit is being used and counsel’s view is obstructed, counsel may relocate for better viewing without requesting permission from the Court. Pursuant to Local Criminal Rule 1.1(e) and Local Civil Rule 79.1, all exhibits will be returned to the party who produced them at the conclusion of the trial. I. Trial Schedule: Generally, trials are scheduled from 9:00 a.m. to 4:30 p.m., beginning on Mondays. Trials do not proceed on Friday unless a jury is deliberating. Jury deliberations proceed from 9:00 a.m. to 4:30 p.m. The Court will notify the parties of deviations from this schedule and will attempt to accommodate jurors, witnesses and counsel, if conflicts arise. COURTESY Be courteous and respectful at all times, in all settings. Counsel may expect such from the Court, and the Court expects such from counsel. Please be familiar with and abide by Civil Local Rule 83.4.